EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

03.06.18

Calling Genetics and Other Things “Life Sciences” Does Not Turn Nature Into Patentable Science

Posted in America, Australia, Patents at 1:13 pm by Dr. Roy Schestowitz

Association for Molecular Pathology v. Myriad Genetics, Inc.
Reference: Association for Molecular Pathology v Myriad Genetics, Inc. | Wikipedia

Summary: The old riddle about whether naturally-occurring phenomena are patentable or not, in light of some very recent news (the past couple of days)

THE USPTO does not, in general, permit patents on genetics. The EPO has just opposed it, so it can be seen as hanging in the balance (the appeal boards will need to step in and decide).

A few days ago we wrote about life patents (e.g. patents on cancer treatments which aren't even drugs/chemicals). There are many different aspects to “life sciences” (a relatively new term if not buzzwords) and they should be considered in isolation: there’s genetics, there’s medicine, there’s treatment, there’s medical equipment and so on. They’re not the same thing.

Days ago we revisited the scam which Allergan set up with the Saint Regis Mohawk Tribe. IAM, not to our surprise, wrote about it under the “life sciences” banner yesterday. Adam Houldsworth wrote: [via]

Allergan sovereign immunity strategy rejected – Allergan’s effort to make patents relating to its Restasis dry-eye treatment exempt from Patent Trial and Appeal Board cancellation proceedings by transferring them to the Saint Regis Mohawk Tribe suffered a serious blow last week. The board ruled that the tribe’s sovereign immunity does not extend to inter partes review, and that a Restasis patent should be subject to proceedings initiated by Mylan. This followed months of controversy surrounding the deal, which was seen by some as an attempt to circumvent the patent system and by others as a means of protecting important assets from a problematic administrative proceeding. The St Regis Mohawks have stated they will appeal the PTAB decision.

These are not “assets” but monopolies and PTAB is not “a problematic administrative proceeding.” But remember that this is IAM, a PTAB basher like Watchtroll, Patently-O, Patent Docs and a few other blogs we monitor for their anti-PTAB slant.

Yesterday we saw this blog post from an anti-PTAB site called Anticipat. This company is selling itself as a ‘cure’ to PTAB’s work and it seems to miss the simple fact that if a patent is abstract, then it’s invalid. Full stop. Here’s the latest rant:

We have previously reported that PTAB judges, like Examiners, are measured by a quota-based production system. For PTAB judges, the quota is based on the number of decisions they author. It is no secret that this production system prompts some Examiners and PTAB judges at times to get creative with practices to most easily meet their quotas. Here, we look at some recent decisions that show a pattern of PTAB judges deciding a Section 101 rejection without looking to the remaining pending grounds on appeal.

Why should they? Again, like we said above, if Section 101 applies (e.g. Alice), then it’s over. We understand that many patent trolls and parasites are afraid of PTAB. It undoes the damage caused when patents were granted in a hurry and/or in error.

“Another day of watching Supreme Court opinions to see if Oil States will come out,” wrote one lawyer this week. “Going to be at least another two weeks.”

He’s wasting his time. Oil States will likely be ruled unanimously in favour of PTAB and its much-needed IPRs. The patent system is a lot better now. SCOTUS has already named “trolls” and bemoaned the effect of frivolous patent litigation. It not only gave Alice but also Mayo and Myriad. PTAB actually enforces these; so why would SCOTUS weaken PTAB now?

The situation is a tad different in Australia, probably due to pressure from the likes of CSIRO. The Australian attorney Mark Summerfield is now ranting about medical/clinical trial patents facing an uphill battle. To quote:

From a policy perspective, getting the balance right is particularly important in the case of pharmaceutical products. If it is too difficult to obtain a valid patent, there may be insufficient incentive for companies to invest billions of dollars in new drug development. On the other hand, it is important to keep in mind that, one way or another, it is the wider community – either individually, or through taxes in countries where healthcare is substantially subsidised by government – that ultimately pays for that development, through the higher prices charged for patented drugs. Allowing patents to be granted too easily therefore may therefore represent a significant social cost.

Australia’s attitude towards patents on life was already mentioned here over the weekend. Patent Docs, a patent maximalists’ site, wrote about it a short while ago. It’s about Myriad again. To quote:

When the Australian High Court ruled against the patentability of isolated naturally occurring genes in the Myriad decision, a number of commentators believed that the decision would ultimately invalidate claims directed to methods involving the practical application of genes. A recent Federal Court decision, however, has confirmed that claims directed to methods involving the correlation of gene sequences to a particular trait in cattle are patent eligible subject matter in Australia.

Time will tell where the EPO stands on Myriad-type cases. At the moment it looks like there are forces tugging at both directions. Our position on that has always been the same: while we support affordable life-saving drugs and usually generics (access to medicine designed to maximise public health), we aren’t against patents on drugs; what we’re against are attempts to patent life itself, i.e. chromosomes, genome, antibodies, DNA sequences and so on.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Just Published: Irrational Ignorance at the Patent Office

    Iancu and his fellow Trump-appointed "swamp" at the USPTO are urged to consult academics rather than law firms in order to improve patent quality in the United States



  2. Microsoft Paid the Open Source Initiative. Now (a Year Later) Microsoft is in the Board of the Open Source Initiative.

    The progression of Microsoft entryism in FOSS-centric institutions (while buying key "assets" such as GitHub) isn't indicative of FOSS "winning" but of FOSS being infiltrated (to be undermined)



  3. Jim Zemlin's Linux Foundation Still Does Not Care About Linux Desktops

    We are saddened to see that the largest body associated with Linux (the kernel and more) is not really eager to see GNU/Linux success; it's mostly concerned about its bottom line (about $100,000,000 per annum)



  4. Links 23/3/2019: Falkon 3.1.0 and Tails 3.13.1

    Links for the day



  5. The Unified Patent Court is Dead, But Doubts Remain Over the EPO's Appeal Boards' Ability to Rule Independently Against Patents on Nature and Code

    Patents used to cover physical inventions (such as engines); nowadays this just isn't the case anymore and judges who can clarify these questions lack the freedom to think outside the box (and disobey patent maximalists' dogma)



  6. Patent Law Firms Still Desperate to Find New Ways to Resurrect Dead Software Patents in the United States

    There's no rebound and no profound changes that favour software patents; in fact, judging by caselaw, there's nothing even remotely like that



  7. Links 22/3/2019: Libinput 1.13 RC2 and Facebook's Latest Security Scandal

    Links for the day



  8. Why the UK Intellectual Property Office (UK-IPO) Cannot Ignore Judges, Whereas the EPO Can (and Does)

    The European Patent Convention (EPC) ceased to matter, judges' interpretation of it no longer matters either; the EPO exploits this to grant hundreds of thousands of dodgy software patents, then trumpet "growth"



  9. The European Patent Office Needs to Put Lives Before Profits

    Patents that pertain to health have always posed an ethical dilemma; the EPO apparently tackled this dilemma by altogether ignoring the rights and needs of patients (in favour of large corporations that benefit financially from poor people's mortality)



  10. “Criminal Organisation”

    Brazil's ex-President, Temer, is arrested (like other former presidents of Brazil); will the EPO's ex-President Battistelli ever be arrested (now that he lacks diplomatic immunity and hides at CEIPI)?



  11. Links 21/3/2019: Wayland 1.17.0, Samba 4.10.0, OpenShot 2.4.4 and Zorin Beta

    Links for the day



  12. Team UPC (Unitary Patent) is a Headless Chicken

    Team UPC's propaganda about the Unified Patent Court (UPC) has become so ridiculous that the pertinent firms do not wish to be identified



  13. António Campinos Makes Up Claims About Patent Quality, Only to be Rebutted by Examiners, Union (Anyone But the 'Puff Pieces' Industry)

    Battistelli's propagandistic style and self-serving 'studies' carry on; the notion of patent quality has been totally discarded and is nowadays lied about as facts get 'manufactured', then disseminated internally and externally



  14. Links 20/3/2019: Google Announces ‘Stadia’, Tails 3.13

    Links for the day



  15. CEN and CENELEC Agreement With the EPO Shows That It's Definitely the European Commission's 'Department'

    With headlines such as “EPO to collaborate on raising SEP awareness” it is clear to see that the Office lacks impartiality and the European Commission cannot pretend that the EPO is “dafür bin ich nicht zuständig” or “da kenne ich mich nicht aus”



  16. Decisions Made Inside the European Patent Organisation (EPO) Lack Credibility Because Examiners and Judges Lack Independence

    The lawless, merciless, Mafia-like culture left by Battistelli continues to haunt judges and examiners; how can one ever trust the Office (or the Organisation at large) to deliver true justice in adherence or compliance with the EPC?



  17. Team UPC Buries Its Credibility Deeper in the Grave

    The three Frenchmen at the top do not mention the UPC anymore; but those who promote it for a living (because they gambled on leveraging it for litigation galore) aren't giving up and in the process they perpetuate falsehoods



  18. The EPO Has Sadly Taken a Side and It's the Patent Trolls' Side

    Abandoning the whole rationale behind patents, the Office now led for almost a year by António Campinos prioritises neither science nor technology; it's all about granting as many patents (European monopolies) as possible for legal activity (applications, litigation and so on)



  19. Where the USPTO Stands on the Subject of Abstract Software Patents

    Not much is changing as we approach Easter and software patents are still fool's gold in the United States, no matter if they get granted or not



  20. Links 19/3/2019: Jetson/JetBot, Linux 5.0.3, Kodi Foundation Joins The Linux Foundation, and Firefox 66

    Links for the day



  21. Links 18/3/2019: Solus 4, Linux 5.1 RC1, Mesa 18.3.5, OSI Individual Member Election Won by Microsoft

    Links for the day



  22. Microsoft and Its Patent Trolls Continue Their Patent War, Including the War on Linux

    Microsoft is still preying on GNU/Linux using patents, notably software patents; it wants billions of dollars served on a silver platter in spite of claims that it reached a “truce” by joining the Open Invention Network and joining the LOT Network



  23. Director Iancu Generally Viewed as a Lapdog of Patent Trolls

    As Director of the Office, Mr. Iancu, a Trump appointee, not only fails to curb patent trolls; he actively defends them and he lowers barriers in order to better equip them with bogus patents that courts would reject (if the targets of extortion could afford a day in court)



  24. Links 17/3/2019: Google Console and IBM-Red Hat Merger Delay?

    Links for the day



  25. To Team UPC the Unified Patent Court (UPC) Has Become a Joke and the European Patent Office (EPO) Never Mentions It Anymore

    The EPO's frantic rally to the very bottom of patent quality may be celebrated by obedient media and patent law firms; to people who actually produce innovative things, however, this should be a worrisome trend and thankfully courts are getting in the way of this nefarious agenda; one of these courts is the FCC in Germany



  26. Links 16/3/2019: Knoppix Release and SUSE Independence

    Links for the day



  27. Stopping António Campinos and His Software Patents Agenda (Not Legal in Europe) Would Require Independent Courts

    Software patents continue to be granted (new tricks, loopholes and buzzwords) and judges who can put an end to that are being actively assaulted by those who aren't supposed to have any authority whatsoever over them (for decisions to be impartially delivered)



  28. The Linux Foundation Needs to Speak Out Against Microsoft's Ongoing (Continued) Patent Shakedown of OEMs That Ship Linux

    Zemlin actively thanks Microsoft while taking Microsoft money; he meanwhile ignores how Microsoft viciously attacks Linux using patents, revealing the degree to which his foundation, the “Linux Foundation” (not about Linux anymore, better described as Zemlin’s PAC), has been compromised



  29. Links 15/3/2019: Linux 5.0.2, Sublime Text 3.2

    Links for the day



  30. The EPO and the USPTO Are Granting Fake Patents on Software, Knowing That Courts Would Reject These

    Office management encourages applicants to send over patent applications that are laughable while depriving examiners the freedom and the time they need to reject these; it means that loads of bogus patents are being granted, enshrined as weapons that trolls can use to extort small companies outside the courtroom


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts